CIT Vs. EXPEDITORS INTERNATIONAL INDIA PVT. LTD

JUDGEMENT

(1.) The Revenue, in this appeal under Section 260A of the Income Tax Act, 1961 (Act, for short) impugns order dated 31.8.2010 passed by the Income Tax Appellate Tribunal (tribunal, for short) in the case of Expeditors International Pvt. Ltd, the respondent-assessee. The assessment year in question is 2002-03.

(2.) Learned Counsel for the revenue has submitted that the tribunal has erred in entertaining and deciding the additional ground, questioning the validity of re-opening under Section 147/148 of the Act. It is submitted that the respondent had not raised and questioned the re-opening before the Assessing Officer and the Commissioner of Income Tax (Appeals) (CIT (A), for short). It is urged that the procedure prescribed in GKN Driveshafts (India) Ltd. vs. ITO, 2003 259 ITR 19 was not followed by the respondent-assessee and, therefore, the respondent is precluded and should not have been permitted to raise the additional ground.

(3.) It is not possible to accept the last contention of the Revenue. GKN Driveshafts prescribes one of the methods or modes by which an assessee can object to re-opening of assessment. It is not necessary or mandatory that an assessee should file a writ petition. The assessee can also object to re-opening in the appellate proceedings. Whether or not the pre-conditions for re-opening are satisfied is a matter of jurisdiction or lack of jurisdiction. It goes to the root of the matter. If the jurisdictional pre-conditions are missing and are absent, the assessee can object and question the reopening in the appellate proceedings. It is not necessary that the assessee must file a writ petition and question the reassessment proceedings.